Please write your Senators (go here) and politely demand that they do the job they were elected to do, protect and defend the Constitution. When we see outrageous rulings shredding our Constitution, here it is because of this judicial activism. Feel free to pull from the letter I signed (below) along with leaders across this great nation. Take the time to pen a note or email your thoughts; it makes a difference.

Leaders Opposing the Senate Confirmation of Victoria F. Nourse to the United States Court of Appeals for the Seventh Circuit

Should the confirmation of Victoria F. Nourse to the United States Court of Appeals for the Seventh Circuit be at any point brought to a vote, we respectfully ask that you vote “nay.” In addition, we ask you to support the principled opposition of Senator Ron Johnson (R-WI) to the confirmation of Ms. Nourse. As you may be aware, Ms. Nourse’s resume is replete with examples of her advocacy against a literal reading of the Constitution and in favor of a theory of judging that amounts to judicial legislation from the bench. As such, her record does not support the conclusion that she would honor the proper role of a judge which is to merely decide cases and to forsake the unconstitutional act of legislating from the bench.

Ms. Nourse states that there are two primary camps of judicial thought: formalists (textualists) and “new legal realists.”[i] As a new legal realist, Nourse is opposed to the views of “formalists”[ii] such as Justice Antonin Scalia[iii] whom she criticizes for “often turn[ing] to textualism and its strict constructionist variant.” She criticizes textualists for seeking to preserve legislative intent by following legislative texts. Nourse argues: “[t]extualists contend that judges will be restrained from engaging in politicized ‘lawmaking’ by standing closely to the text.”[iv]

2. Nourse Praises the Results-Based “Radical Theory of Judging” That Departs From the Text of the Law and Reaches Decisions Based on Facts Rather Than Law.

Nourse, a new legal realist, writes: “The old legal realists were enormously successful in positing a radical theory of judging as a challenge to formalist [textualist] legal reasoning. This theory’s core claim is that [legal] doctrine alone cannot determine outcomes and that judges respond (and should respond) to facts and factual contexts. So, too, each of the varieties of new legal realism builds from this core claim. They do so, however, in new ways because each is responding to a new variant of “formalism” – a “textualist” variant with an instrumentalist rationale that limits the scope of judicial and legislative intervention in the market. (Emphasis added.) (Parenthetical original.)[v]

Nourse Errantly Argues That Judges Can Amend the Text of the Constitution Through a Mini “Constitutional Convention.”

In an hour-long videotaped speech at Emory University entitled “Political Education and the Self-Transcending Constitution,” Nourse addresses what she calls the problem of “the difficulty of a constitutional text that stays the same and a world that changes.” She explains how the constitution can be amended outside of the arduous means provides in the constitution.

Nourse states: “…the constitution changes as the people who constitute the nation change – as they participate and take control of their government – as they re-constitute themselves. The separation of powers has always been since our founding – the means by which the Constitution may change in practice legitimately short of the far more arduous and almost impossible amendment process [as provided at Article V of the text of the Constitution].

“Students of our government tend to think of the separation of powers as an impediment – but this depends upon a conceptual mistake about the nature of constitutional power. In my view, power is not a question of [written texts] ascription or adjectival function – it is not about trying to define what is executive or legislative – it is the power of the people who are constituted to act in certain ways. When the people converge through the means of the separation of powers over a long period of time a constitutional convention arises. These constitutional conventions … are embodied not in formal amendments but in what Yale’s Bill Eskridge has called small “c” constitutionalism [including]court rulings … which re-constitute the people and their image of themselves. This kind of small ”c” constitutional change is as important, indeed, sometimes more important than the more traditional kinds of change through the amendment process.[vi]

Nourse’s advocacy in favor of judicial usurpation of legislative power – even usurpation of constitutional power is anti-constitutional. Her view makes a mockery of the constitution and would grant as few as five judges the ability to amend the constitution according to their own political views.

Nourse is Critical of Constitutional Textualism; She Makes the Senseless Claim That the Constitution’s Grants of Power “Govern No One.”

Nourse believes: “[t]he standard view of the Constitution - held today by most conventional constitutional law scholars, I would add - is a weak, or qualified, version of the old positivist position. The idea is that the Constitution is a law (albeit a higher one), that law is command, and that command is to be found in the text.”[vii] Nourse goes so far as to argue that to remove the “vesting clauses” of the Constitution which divide power between the executive, legislative, and judicial branch would have no impact on the meaning of the Constitution. Not surprising, Nourse specifically references the Article I, Section 1 requirement that “All legislative Power herein granted shall be vested in a Congress of the United States”[viii] and argues that “[t]hese descriptive words, assumed to be the most important and naturalized text in our Constitution, do nothing in and of themselves. They govern no one.”[ix] According to Nourse, if the exclusive grant of legislative power to Congress “govern[s] no one” then judges are free to legislate their own policy preferences from the bench.

Nourse Advocates a “New Legal Realism” in which “The Power of Globalization on All of Our Lives is Recognized.”

Nourse writes: “new legal realism, in its various forms, holds out hope for a legal theory and scholarly and policy agendas that more adequately respond to a world in which politics is possible even if imperfect, in which judges do not feign restraint while recognizing the inevitable risk of partial judgment, in which markets are no longer assumed to self-regulate, and in which the power of globalization on all of our lives is recognized.”[x] In reference to “globalization” Nourse explains her assumption that there are “new global and transnational institutions from above – in sum, the new world order before us.” In a supporting footnote Nourse approvingly quotes that: “State law, including the frame of state constitutional law, is increasingly rivaled by law otherwise spatially extended, including sub-state law,regional supranational law, transnational domain-specific private ordering, hybrid public-private ordering and, increasingly, new forms of global legal regime that neither claim universality nor obviously emanate from nor respect the aggregative sovereign will.”[xi]

Conclusion

Ms. Nourse’s resume is replete with examples of her advocacy against a literal reading of the Constitution and in favor of a theory of judging that amounts to judicial legislation from the bench. As such, her record does not support the conclusion that she would honor the proper role of a judge which is to merely decide cases and to forsake the unconstitutional act of legislating from the bench. Therefore, we respectfully request that you oppose the confirmation of Ms. Nourse to the United States Court of Appeals for the Seventh Circuit, and that you support the principled opposition of Senator Ron Johnson to the confirmation of Ms. Nourse.

[i] In a law review article on “New Legal Realism,” Nourse argues: (1) “… the new realism rejects formalism [textualism] and finds that rationalism is not enough ….” (2) “t[]he new legal realists’ primary target is the first view of formalism [textualism] embedded in neoclassical law and economics.” and (3) “There are

several factors that we believe suggest that new legal realism has a much better shot at responding to our new world order—the facts on the ground—than its competitor, the new formalism [textualism].” Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 95, 97, and 127 respectively (2009).

Perhaps Nourse’s, most demogogic attack on “textualism” and “formalism” states:

In sum, new legal realists generally oppose a neo-formalist conception of judging that is blind to real-life behavior and to the institutional implications of judicial decision making. Concepts (such as the rational actor, efficiency, and public choice in neoclassical law and economics, or the competing concepts that new legal realism puts forward, such as behavioralism, factual and social contextualization, and institutional choice) confer theoretical structure on judicial practice and shape what courts do through doctrine.207 Neoclassical law and economics produced powerful concepts that had tremendous effects on what courts do, including through judicial doctrine and interpretive method, helping to give rise to a new textualism. New legal realists challenge those concepts and put forth competing ones. Textualism, new realists contend, is insufficient for judging, both descriptively (judges always bring some concepts to bear, and these concepts shape the categories that doctrine uses), institutionally (the nature of judging tends to transform nonjudicial ideals into judicial ideals), and normatively (the choice of categories and law’s coercive force have real consequences for people).

Id. at 107-08. (Emphasis added.)

[ii] Nourse disapprovingly categorizes textualism as “formalism” and says that it has “two variants: (i) a descriptive and prescriptive theory of law based on a complex of rationally organized principles that can

and should be deductively applied to any set of facts; and (ii) a view of law as rule-bound, under which judges apply rules to facts as part of a rule-of-law system regardless of consequences in particular cases.”

Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 97 (2009).

[iii] Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 97 (2009).

[iv] Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 102 (2009). (Emphasis added.)

[v] Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 101 (2009). (Emphasis added.)

“ … the constitution changes as the people who constitute the nation change – as they participate and take control of their government – as they re-constitute themselves. The separation of powers has always been since our founding – the means by which the Constitution may change in practice legitimately short of the far more arduous and almost impossible amendment process. Students of our government tend to think of the separation of powers as an impediment – but this depends upon a conceptual mistake about the nature of constitutional power. In my view, power is not a question of [written texts] ascription or adjectival function – it is not about trying to define what is executive or legislative – it is the power of the people who are constituted to act in certain ways. When the people converge through the means of the separation of powers over a long period of time a constitutional convention arises. These constitutional conventions require massive consensus across the departments and vast amounts of popular will. They are embodied not in formal amendments but in what Yale’s Bill Eskridge has called small “c” constitutionalism, executive orders, and statutes, and court rulings, like Brown v. Board of Education, the Americans with Disabilities Act, the Civil Rights Act, which re-constitute the people and their image of themselves. This kind of small ”c” constitutional change is as important, indeed, sometimes more important than the more traditional kinds of change through the amendment process. Such change is legitimate because it is carried on through the deliberate dialogues set out by the Separation of Powers. It is nevertheless an active process – one step forward – one back as the departments compete for power. But as the dynamic departmental dance proceeds – oscillating between states and nations, presidents and congress, the people and their temporary sovereigns – some conventions rigidify so strongly – that their absence becomes unthinkable.”

“The standard view of the Constitution - held today by most conventional constitutional law scholars, I would add - is a weak, or qualified, version of the old positivist position. The idea is that the Constitution is a law (albeit a higher one), that law is command, and that command is to be found in the text. Indeed, the dominant approach toward constitutional interpretation today is known as textualism - a view so dominant that it has become standard even among those who purport to find it far too constraining.

Now let us consider what this view does to the most basic of constitutional principles - its structure. The standard constitutional law approach is to view structure as a set of legal commands drawn from the text - particular texts known as the vesting clauses. The vesting clauses describe our government using three of the Constitution's most prominent yet opaque terms: the "executive," "legislative," and "judicial" powers. These words are thought, in turn, to be the beginning and the end of the matter; because power is naturalized as force, these texts are thought to be about as "natural" as the Constitution gets. They are so natural, they appear incapable of definition and at the same time self-executing. To paraphrase Justice Scalia: executive power is executive power is executive power.

Now, perform with me an intellectual experiment. Take these words - the words that seem so naturally descriptive of our Constitution's structure (the terms "executive," "judicial," and "legislative" power). Now, cut them out of the Constitution, wipe them out, eliminate them. Throw away the vesting clauses if you will. You may strike all these terms and not much will happen. The Congress will still meet, the people will still vote, the Supreme Court will still decide cases, and the federal government will still be supreme. In short, we will still have a government. These descriptive words, assumed to be the most important and naturalized text in our Constitution, do nothing in and of themselves. They govern no one.

Comments

Atlas Alert: Oppose Nourse, Defend the Constitution

Please write your Senators (go here) and politely demand that they do the job they were elected to do, protect and defend the Constitution. When we see outrageous rulings shredding our Constitution, here it is because of this judicial activism. Feel free to pull from the letter I signed (below) along with leaders across this great nation. Take the time to pen a note or email your thoughts; it makes a difference.

Leaders Opposing the Senate Confirmation of Victoria F. Nourse to the United States Court of Appeals for the Seventh Circuit

Should the confirmation of Victoria F. Nourse to the United States Court of Appeals for the Seventh Circuit be at any point brought to a vote, we respectfully ask that you vote “nay.” In addition, we ask you to support the principled opposition of Senator Ron Johnson (R-WI) to the confirmation of Ms. Nourse. As you may be aware, Ms. Nourse’s resume is replete with examples of her advocacy against a literal reading of the Constitution and in favor of a theory of judging that amounts to judicial legislation from the bench. As such, her record does not support the conclusion that she would honor the proper role of a judge which is to merely decide cases and to forsake the unconstitutional act of legislating from the bench.

Ms. Nourse states that there are two primary camps of judicial thought: formalists (textualists) and “new legal realists.”[i] As a new legal realist, Nourse is opposed to the views of “formalists”[ii] such as Justice Antonin Scalia[iii] whom she criticizes for “often turn[ing] to textualism and its strict constructionist variant.” She criticizes textualists for seeking to preserve legislative intent by following legislative texts. Nourse argues: “[t]extualists contend that judges will be restrained from engaging in politicized ‘lawmaking’ by standing closely to the text.”[iv]

2. Nourse Praises the Results-Based “Radical Theory of Judging” That Departs From the Text of the Law and Reaches Decisions Based on Facts Rather Than Law.

Nourse, a new legal realist, writes: “The old legal realists were enormously successful in positing a radical theory of judging as a challenge to formalist [textualist] legal reasoning. This theory’s core claim is that [legal] doctrine alone cannot determine outcomes and that judges respond (and should respond) to facts and factual contexts. So, too, each of the varieties of new legal realism builds from this core claim. They do so, however, in new ways because each is responding to a new variant of “formalism” – a “textualist” variant with an instrumentalist rationale that limits the scope of judicial and legislative intervention in the market. (Emphasis added.) (Parenthetical original.)[v]

Nourse Errantly Argues That Judges Can Amend the Text of the Constitution Through a Mini “Constitutional Convention.”

In an hour-long videotaped speech at Emory University entitled “Political Education and the Self-Transcending Constitution,” Nourse addresses what she calls the problem of “the difficulty of a constitutional text that stays the same and a world that changes.” She explains how the constitution can be amended outside of the arduous means provides in the constitution.

Nourse states: “…the constitution changes as the people who constitute the nation change – as they participate and take control of their government – as they re-constitute themselves. The separation of powers has always been since our founding – the means by which the Constitution may change in practice legitimately short of the far more arduous and almost impossible amendment process [as provided at Article V of the text of the Constitution].

“Students of our government tend to think of the separation of powers as an impediment – but this depends upon a conceptual mistake about the nature of constitutional power. In my view, power is not a question of [written texts] ascription or adjectival function – it is not about trying to define what is executive or legislative – it is the power of the people who are constituted to act in certain ways. When the people converge through the means of the separation of powers over a long period of time a constitutional convention arises. These constitutional conventions … are embodied not in formal amendments but in what Yale’s Bill Eskridge has called small “c” constitutionalism [including]court rulings … which re-constitute the people and their image of themselves. This kind of small ”c” constitutional change is as important, indeed, sometimes more important than the more traditional kinds of change through the amendment process.[vi]

Nourse’s advocacy in favor of judicial usurpation of legislative power – even usurpation of constitutional power is anti-constitutional. Her view makes a mockery of the constitution and would grant as few as five judges the ability to amend the constitution according to their own political views.

Nourse is Critical of Constitutional Textualism; She Makes the Senseless Claim That the Constitution’s Grants of Power “Govern No One.”

Nourse believes: “[t]he standard view of the Constitution - held today by most conventional constitutional law scholars, I would add - is a weak, or qualified, version of the old positivist position. The idea is that the Constitution is a law (albeit a higher one), that law is command, and that command is to be found in the text.”[vii] Nourse goes so far as to argue that to remove the “vesting clauses” of the Constitution which divide power between the executive, legislative, and judicial branch would have no impact on the meaning of the Constitution. Not surprising, Nourse specifically references the Article I, Section 1 requirement that “All legislative Power herein granted shall be vested in a Congress of the United States”[viii] and argues that “[t]hese descriptive words, assumed to be the most important and naturalized text in our Constitution, do nothing in and of themselves. They govern no one.”[ix] According to Nourse, if the exclusive grant of legislative power to Congress “govern[s] no one” then judges are free to legislate their own policy preferences from the bench.

Nourse Advocates a “New Legal Realism” in which “The Power of Globalization on All of Our Lives is Recognized.”

Nourse writes: “new legal realism, in its various forms, holds out hope for a legal theory and scholarly and policy agendas that more adequately respond to a world in which politics is possible even if imperfect, in which judges do not feign restraint while recognizing the inevitable risk of partial judgment, in which markets are no longer assumed to self-regulate, and in which the power of globalization on all of our lives is recognized.”[x] In reference to “globalization” Nourse explains her assumption that there are “new global and transnational institutions from above – in sum, the new world order before us.” In a supporting footnote Nourse approvingly quotes that: “State law, including the frame of state constitutional law, is increasingly rivaled by law otherwise spatially extended, including sub-state law,regional supranational law, transnational domain-specific private ordering, hybrid public-private ordering and, increasingly, new forms of global legal regime that neither claim universality nor obviously emanate from nor respect the aggregative sovereign will.”[xi]

Conclusion

Ms. Nourse’s resume is replete with examples of her advocacy against a literal reading of the Constitution and in favor of a theory of judging that amounts to judicial legislation from the bench. As such, her record does not support the conclusion that she would honor the proper role of a judge which is to merely decide cases and to forsake the unconstitutional act of legislating from the bench. Therefore, we respectfully request that you oppose the confirmation of Ms. Nourse to the United States Court of Appeals for the Seventh Circuit, and that you support the principled opposition of Senator Ron Johnson to the confirmation of Ms. Nourse.

[i] In a law review article on “New Legal Realism,” Nourse argues: (1) “… the new realism rejects formalism [textualism] and finds that rationalism is not enough ….” (2) “t[]he new legal realists’ primary target is the first view of formalism [textualism] embedded in neoclassical law and economics.” and (3) “There are

several factors that we believe suggest that new legal realism has a much better shot at responding to our new world order—the facts on the ground—than its competitor, the new formalism [textualism].” Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 95, 97, and 127 respectively (2009).

Perhaps Nourse’s, most demogogic attack on “textualism” and “formalism” states:

In sum, new legal realists generally oppose a neo-formalist conception of judging that is blind to real-life behavior and to the institutional implications of judicial decision making. Concepts (such as the rational actor, efficiency, and public choice in neoclassical law and economics, or the competing concepts that new legal realism puts forward, such as behavioralism, factual and social contextualization, and institutional choice) confer theoretical structure on judicial practice and shape what courts do through doctrine.207 Neoclassical law and economics produced powerful concepts that had tremendous effects on what courts do, including through judicial doctrine and interpretive method, helping to give rise to a new textualism. New legal realists challenge those concepts and put forth competing ones. Textualism, new realists contend, is insufficient for judging, both descriptively (judges always bring some concepts to bear, and these concepts shape the categories that doctrine uses), institutionally (the nature of judging tends to transform nonjudicial ideals into judicial ideals), and normatively (the choice of categories and law’s coercive force have real consequences for people).

Id. at 107-08. (Emphasis added.)

[ii] Nourse disapprovingly categorizes textualism as “formalism” and says that it has “two variants: (i) a descriptive and prescriptive theory of law based on a complex of rationally organized principles that can

and should be deductively applied to any set of facts; and (ii) a view of law as rule-bound, under which judges apply rules to facts as part of a rule-of-law system regardless of consequences in particular cases.”

Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 97 (2009).

[iii] Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 97 (2009).

[iv] Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 102 (2009). (Emphasis added.)

[v] Victoria Nourse & Gregory Shaffer, Varities of New Legal Realism: Can A New World Order Prompt a New Legal Theory,” 95. CORNELL L. REV. 61, at 101 (2009). (Emphasis added.)

“ … the constitution changes as the people who constitute the nation change – as they participate and take control of their government – as they re-constitute themselves. The separation of powers has always been since our founding – the means by which the Constitution may change in practice legitimately short of the far more arduous and almost impossible amendment process. Students of our government tend to think of the separation of powers as an impediment – but this depends upon a conceptual mistake about the nature of constitutional power. In my view, power is not a question of [written texts] ascription or adjectival function – it is not about trying to define what is executive or legislative – it is the power of the people who are constituted to act in certain ways. When the people converge through the means of the separation of powers over a long period of time a constitutional convention arises. These constitutional conventions require massive consensus across the departments and vast amounts of popular will. They are embodied not in formal amendments but in what Yale’s Bill Eskridge has called small “c” constitutionalism, executive orders, and statutes, and court rulings, like Brown v. Board of Education, the Americans with Disabilities Act, the Civil Rights Act, which re-constitute the people and their image of themselves. This kind of small ”c” constitutional change is as important, indeed, sometimes more important than the more traditional kinds of change through the amendment process. Such change is legitimate because it is carried on through the deliberate dialogues set out by the Separation of Powers. It is nevertheless an active process – one step forward – one back as the departments compete for power. But as the dynamic departmental dance proceeds – oscillating between states and nations, presidents and congress, the people and their temporary sovereigns – some conventions rigidify so strongly – that their absence becomes unthinkable.”

“The standard view of the Constitution - held today by most conventional constitutional law scholars, I would add - is a weak, or qualified, version of the old positivist position. The idea is that the Constitution is a law (albeit a higher one), that law is command, and that command is to be found in the text. Indeed, the dominant approach toward constitutional interpretation today is known as textualism - a view so dominant that it has become standard even among those who purport to find it far too constraining.

Now let us consider what this view does to the most basic of constitutional principles - its structure. The standard constitutional law approach is to view structure as a set of legal commands drawn from the text - particular texts known as the vesting clauses. The vesting clauses describe our government using three of the Constitution's most prominent yet opaque terms: the "executive," "legislative," and "judicial" powers. These words are thought, in turn, to be the beginning and the end of the matter; because power is naturalized as force, these texts are thought to be about as "natural" as the Constitution gets. They are so natural, they appear incapable of definition and at the same time self-executing. To paraphrase Justice Scalia: executive power is executive power is executive power.

Now, perform with me an intellectual experiment. Take these words - the words that seem so naturally descriptive of our Constitution's structure (the terms "executive," "judicial," and "legislative" power). Now, cut them out of the Constitution, wipe them out, eliminate them. Throw away the vesting clauses if you will. You may strike all these terms and not much will happen. The Congress will still meet, the people will still vote, the Supreme Court will still decide cases, and the federal government will still be supreme. In short, we will still have a government. These descriptive words, assumed to be the most important and naturalized text in our Constitution, do nothing in and of themselves. They govern no one.